from the legal-challenges dept

While The Pirate Bay has lost all of its appeals in Sweden, one of the founders, Fredrik Neij, is apparently going to take his case to the European Courts, arguing that shutting down a site like The Pirate Bay is a violation of Article 10 of the European Convention on Human Rights. As Neij's lawyers point out, since TPB does not host or transmit any material covered by copyright, shutting it down (or fining and jailing Neij based on its usage) rejects his rights "to receive and impart information."

While I understand where he's coming from, I do worry that courts to date have been particularly bad at comprehending the fact that The Pirate Bay neither hosts nor transmits any unauthorized information. While they are seeking to make analogies, the courts seem to zero in on the way many people use the tool, rather than separating the tool from the usage.

The lawyer also notes that since the torrent file information itself wasn’t illegal, the function should be covered by Article 10. He adds that he will also ask for further scrutiny as to whether it was indeed correct to hold Fredrik Neij responsible for what other people did when they used The Pirate Bay.

“In our opinion, it is like being held guilty in court because someone delivered a letter with illegal content. Another, and perhaps even more relevant analogy, would be if the founders of a buying and selling site were found guilty after someone sold a stolen bicycle after it was advertised on the site,” Nilsson explains.

Basically, it sounds like they're going with a typical secondary liability protection argument, which makes sense in theory. Once again, however, the courts have been pretty resistant to recognizing such an argument, especially when so much of the usage is for infringing purposes and (especially) when the operators of the site were quick to mock those who challenged how much of the usage was infringing. The courts just don't have very much sympathy there. Thus, I'm not confident this will turn out all that well -- and I actually worry that the end result may be a precedent that cuts of secondary liability protections for other sites as well.

What we have learned over ten years is that copyright enforcement against primary infringers cannot scale to millions of users. The copyright industry has to have secondary liability -- it is an existential issue for them.

The secondary liability needed by the copyright industry also needs to be fast and cheap, which means it is going to be riddled with errors (like dajaz1) -- but again, this is an existential issue.

Re:

"What we have learned over ten years is that copyright enforcement against primary infringers cannot scale to millions of users."

The real lesson to learn is that once you have to start attacking millions of users, there may be far more wrong with the way they do business than simply having infringing sources available.

"The copyright industry has to have secondary liability -- it is an existential issue for them."

...and when that inevitably fails, do they go for tertiary infringement? Or do they finally realise that they will never eradicate piracy by attacking the tools while so many other problems they create drive people to piracy to begin with?

"The secondary liability needed by the copyright industry also needs to be fast and cheap, which means it is going to be riddled with errors"

Which is why it will never be acceptable, and their propaganda attempts will never be believed by anyone with 2 brain cells to rub together.

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sincerely hope Fredrik Neij is successful in this fight. if nothing else, it will at least let everyone know what way the EU is going as far as human rights and freedoms are concerned. it will give them the opportunity to prove whether they are sincere in their claims that, eg, 'website blocking is not the EU option'. i just hope that they are not so easily bought or influenced by the entertainment industries as judges in other countries, (the US appears to be one of those) and are fully aware of the consequences to the rights they say they want to protect so vigorously and rate so highly, if they rule in favour of those industries. i also hope they are fully aware of the threats they will receive from the US government and the industries themselves along with the 'backdoor' attempts that will come from bills like TPP etc. stormy seas lie ahead. i hope sense for the future of the Internet and people rights, not money, reigns supreme!

Re:

I too hope he will be successful but just as a point of clarification, we won't know where the EU is heading after this. It's been reported in the US media as if Frederik was appealing to EU courts which he's not. One can appeal to EU courts only if an act of the EU is concerned and he's trying to fight against an act of the Swedish state. So, he'll be going to the European Court of Human Rights (ECHR), which is not a court of the EU but of a different organization.

Anyway, it should have implications for the EU because the EU has bound itself in it's treaties to adhere to the Charta of Human Rights but as long as Russia is blocking the EU's acession to the Charta, a decision of the ECHR isn't binding for the EU.

Re: Use phones.

Except that both of those services actually transport the illegal things. The pirate bay doesn't even do that, so in terms of the analogy TPB is even more innocent than phone companies or the postal service.

Re: Re: Use phones.

A better analogy would be selling maps. Let's say you sell maps, and someone buys one of your maps and uses it to find his way to someplace he shouldn't be (private property) and is therefore in violation of trespass law. The argument being made is that you're responsible for his violation of trespass law because you sold him the map that showed him how to get there.

Sweden is not in the US

Why do you insist on describing EU and other non-US legal systems and actions in US terms? There are different precedents, concepts, federal-like limitations and legal codifications over here.

Neij and the lawyers are working within the Swedish and EU systems, using existing laws and definitions to handle a case over here what a District Court in the US might be hearing in which a lower court overstepped its boundaries &/or failed to take into account overriding legal concerns & conditions.

Re: Sweden is not in the US

and you think that if the guy wins the case, that the US and in particular, the US entertainment industries wont be on that EU ruling like flies on shit, do you? i'll bet the US government and all it's different depts, in every shape and form, will throwing tantrums and fits as well as threats around because someone has decided that their own citizens and interests are more important that those of the US. gonna prove interesting. just waiting to see how long it takes for the entertainment industries to start complaining about what Neij wants to do and how providing 'justice to a criminal' will destroy that industry. fucking wingers!! grow up!!

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> and you think that if the guy wins the case... the US entertainment industries wont be on that EU ruling like flies on shit, do you?

Europe. Is. Not. The. US. Get it through your noggin. We don't give a flying fuck what the US entertainment industry thinks or wants. That's how we keep blocking and repealing most of the Hollywood-written legislation they manage to occasionally get through.

> grow up!!
Such a convinciong, perhaps even bulletproof argument from someone whose writing style shows himself to be not yet half my age. Truly I have been schooled.

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Re: Re: Re: Sweden is not in the US

Clearly the EU isn't the US, but companies in the US have affiliated shells in other countries. So when someone here says"the riaa/mpaa will throw a fit" it really means the companies associated with them in affected countries will have a cow in their stead. See: GEMA, brien, ifpi, wto, etc. Hollywood has big pockets which are used to buy influence in the politics of others.

Re: Sweden is not in the US

Hear hear! It's like Americans somehow think the whole world is America. Here's a newsflash for you, over 96% of the world is NOT American. Just because the bully US constantly threatens other countries to force them to toe the line doesn't make them American!

Bribe Funding

What the internet needs is a "Kickstarter" type program for buying our own politicians and judges.
Once we have them in our pocket then we can start creating our own agenda to sue the existing "Hollywood" into oblivion.
It seems to be working for them,so why not for us as well?
I think that if it's war with their customers they want, then it' war we should give them.
If pirate bay goes down many,many more will follow.

Clarity

"The courts seem to zero in on the way many people use the tool, rather than separating the tool from the usage."

This is a 'teachable' comment.

The courts ARE separating the "tool" (P2P) from the usage (knowingly and commercially facilitating unlicensed works, as everyone knows TPB does). If The Pirate Bay were only The Promo Bay -- which is consensual, as far as I know--do you think any court would give a shit about them? No, they wouldn't. Because P2P or actual "sharing" is not what is under attack. The use of the tool for going out of your way to violate the plainly held legal rights of individuals and businesses -- that IS under attack and for very good reason. The tool has no inherent logic. The use is all that matters.

Re: Clarity

Any yet folks like you, AC 25, still won't take a look at the law itself. Nor can you seem to imagine that the law could be anything but good. Those legal "rights?" They were bought and paid for by the entertainment industry, not earned. The law has been twisted beyond recognition and does not serve its original purpose. This law is unethical and unjust, and to oppose and ignore it is not wrong. Therefore, TPB is not wrong. The law is. Reform or remove. Those are the only two things that can make the law better.

Re: Re: Clarity

This is all your opinion, which I respect. You should think about what the law should be and then work for that and promote that, understanding that you still live under a different set of *legitimate* laws in the meantime and face consequences for breaking them until reform takes place. I'm certainly not against civil disobedience, I just don't see enough of a plan of reform to justify calling it that.

Re: Re: Clarity

Not just open ended facilitation, but serving *no significant purpose* other than facilitation. *Knowing* facilitation. *Dedicated* to theft. It's all about the qualifiers/distinctions. Otherwise, you are correct, just about the entire internet would be liable which, of course, is quite clearly not the case, as much as Mike, at times, cherry picks and amplifies scare stories to make sure everyone stays riled up and vigilant -- which serves a purpose I admit. I certainly don't want to see the laws being abused either.

Re: Clarity

Yawn... usual misdirection and bullshit as normal...

The "tool" really being discussed is BitTorrent. This is what's been under attack for a long time, at least since the idiots failed to address the real reasons why people used Napster and its progeny. Whatever you think of their morals and motives, all they're doing is providing a search engine for torrent files. The possibility that infringing usages might appear more than non-infringing ones has more to do with ridiculous copyright rules than anything happening in Sweden.

"If The Pirate Bay were only The Promo Bay -- which is consensual, as far as I know--do you think any court would give a shit about them?"

Ask MP3.com, or MP3Tunes, or archive.org (not shut down, but targeted), hell try Rio and Sony for their storage devices. Ask YouTube. I seem to remember a lot of incidents where mostly legal content was stored, but they were still attacked by morons who can't handle change.

"The tool has no inherent logic."

Look in a mirror, there's no inherent logic there. As you and many other ACs prove on a daily basis when you attack paying customers like myself rather than trying to block them because other people pirate.

"The use is all that matters."

Andres Behring used a gun to kill people, so do you support that ban? He also claims to have played video games to "train" - should they be banned? He's also been linked to Fox and right-wing press - should they be banned, or the website/TV technology used to transmit them? What's your filter for when tools need to be banned?

Re: Re: Clarity

"What's your filter for when tools need to be banned?"

Not about banning tools, that's what you don't seem to understand. I know you see it as a big abstract attack on digital communication, but it isn't. None of the examples you gave banned a tool or attacked a tool for existing, they were a matter of use. Not arguing that all of the court decisions or results were perfect or things I agree with but we live under the rule of law whether you like it or not. You are conflating a lot of unrelated stuff here and ignoring the obvious reality. We are not entitled to use tools to violate the legally held rights of others. Doesn't matter what the tool is. Maybe that's the right not to be murdered, maybe it's the right not to have your copyright infringed. Same essential principle.

"Whatever you think of their morals and motives, all they're doing is providing a search engine for torrent files."

Right, yeah, so innocent. All they're doing is knowingly providing a convenient space for people to violate the rights of artists, and admit to it trying to hide behind legal loopholes. And charge for ads on top of it. No justification for it, sorry. Keep in mind the distinction of going against sites--organized and run by people (not "technologies")--that serve no significant purpose other than infringement.

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"Keep in mind the distinction of going against sites--organized and run by people (not "technologies")--that serve no significant purpose other than infringement."

That's your problem - you deliberately don't see that they have non-infringing uses. Dan Bull deliberately released his music on the Piratebay and yet, to "protect artists", it was ordered blocked in the UK.

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No I see very clearly that they have non-infringing uses. Just not anywhere near the degree to which it is used, marketed or maintained or, yes, "dedicated" to infringement. Just look at the most popular torrents at any given time. Commercial shlock from the same Hollywood "idiots" that everyone then turns around and complains about when it is convenient. I think P2P technology is great, but it doesn't give us the right to turn off our brains or ignore our responsibilities as citizens. What is wrong with trying to draw lines in the sand to determine what is or isn't fair? That's all I am trying to do. Dan Bull does not make up for the whopping majority of artists who have not consented. That is a weak argument.

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Yet, you admit that Dan Bull is using the same tool as the infringers.

You've failed to go after the infringers. You've failed to address the hundreds (or even thousands) of problems with the industry that drive people to infringing sources. You've failed to address the changing marketplace that simply cannot support the same business models you're trying to reinstate.

You're merely attacking the tool, which you yourself admit has legitimate uses. As a tool, TPB does nothing that other torrent sites don't also do, even those dedicated to legal content - only their marketing and image are different. y going after them, you're attacking the technology itself as every attack can be used against any similar site.

Re: Re: Re: Clarity

"We are not entitled to use tools to violate the legally held rights of others."

The point you don't understand is that you are attacking the tool makers themselves rather than the people who use them. TPB and every other torrent site has perfectly legitimate uses. They do not infringe content themselves. They do not host infringing content. They don't even upload the links themselves, except perhaps the ones directly related to legal content through The Promo Bay. How is this not an attack on the tool rather than those misusing it? You are yet to explain this simple concept.

"Maybe that's the right not to be murdered, maybe it's the right not to have your copyright infringed."

Yet, you won't try to destroy the makers of the tools being misused to remove one right, but only go after the tools used to infringe on another. A strange hypocrisy don't you think?

"Keep in mind the distinction of going against sites--organized and run by people (not "technologies")--that serve no significant purpose other than infringement."

Except that argument is complete bullshit, and you know it. Whatever your opinion of TPB, it's perfectly possible to get a lot of legal content there. On a basic level, there's nothing that separates them from what you might consider 100% innocent sites, who still need to be protected from users' actions they have no control over. Stop ignoring this fact because it's inconvenient to you. Address reality, not the convenient fiction you have constructed.

Re: Re: Re: Re: Clarity

Not to defend the other AC, but you are invoking a flawed analogy which does not help your case.

A static tool like a hammer has both legal and illegal uses, and the tool maker isn't responsible for its use after selling it to the customer.

But TPB is a central index of infohashes referring to files a lot of which are made available without the copyright holder's permission.

Under the DMCA TPB would certainly not be entitled to safe harbor because its owners either induce the infringement or have knowledge of specific instances of infringement on which they refuse to act even after being notified.

Now the law equating a link or infohash with the actual file does not make sense, but TPB is not equivalent with a toolmaker simply for the reason that the owners have the ability and knowledge to control infringement and refuse to do so.

Google isn't responsible for providing search results because it has registered a DMCA agent and takes down infringing links.

Google of course is still blamed by the copyright maximalists for profitting of infringement, but as long as it plays by the rules, it is protected by the law.

Re: Re: Re: Re: Re: Clarity

"But TPB is a central index of infohashes referring to files a lot of which are made available without the copyright holder's permission."

...and a lot of which are. Making it a neutral tool, just like a hammer or the web browser used to go there.

"Under the DMCA TPB would certainly not be entitled to safe harbor..."

...because they're not in the US. No matter what the **AAs think, Swedish law is what they operate under, not US law.

"the owners have the ability and knowledge to control infringement and refuse to do so."

No more than any other search engine. Even Google's occasional deference to the **AAs demands doesn't stop pirated material from being easily located through their search engine.

"Google isn't responsible for providing search results because it has registered a DMCA agent and takes down infringing links."

Pick a movie, add torrent to the end of its title. Type it into Google. See the thousands of results you get? Yeah, that's an effective way to deal with it, clearly. This is your idea of an effective solution?

Also, Google is a US company, so it needs to operate under US law. Not a direct comparison.

"TPB does not even pretend playing by any rules."

They openly mock the rules, especially those of a foreign country they have never visited. That doesn't mean they don't merely provide a tool. Attacking the tools instead of the reasons why people misuse the tools in the first place is the reason why this action is doomed to failure. After a decade and a half of failed and horribly backfiring attacks, I wish people would have grasped this simple fact...

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Linking

The clearest analogy is my putting up a sign on my front lawn indicating the Joe Blow at such and such an address has left his door open for anyone to go in and get some item of worth to carry away. The fact that Joe may live in a different country, state, county, city, neighborhood is not at all relevant.

Re: Linking

Bad analogy. Yes, the sign (torrent) points you to something worth having (files), but you're conflating real physical items which are finite with digital files that are infinite. If I read a sign and take something from Joe Blow's house, he no longer has that item, while if I use a torrent, I make a copy of a file, which still resides on the hard drives owned by the people I am downloading from.

Re: Linking

Definitely not legal to set up a business (like TPB is) and charge for *advertising* on your sign while you tell people which houses they can go trespass. You would be arrested along with the person trespassing.

Re: Re: Linking

Can I ask you a question? Why are you so dead set against infringement? Not all infringement is harmful. What if I use the Piratebay to help me infringe on copyyright, but I invoke the fair use clause - such as in the following scenario.
1) A US citizen purchases a DVD, and wishes to make a backup copy on a hard drive, in case the disc gets scratched.
2) In the US, circumventing the DRM on the DVD is illegal (even though the purpose is to make a backup of the movie, which is legal). So the citizen, in an attempt to stay legal, fires up their torrent client and grabs a torrent from the Piratebay.
3) They carefully configure their client so as not to upload, they strictly ensure their client is downloading only.
4) They then use the downloaded movie file in a video review (let's say, for ThatGuyWithTheGlasses or a similar site)
With this, I cannot see copyright infringement. Whoever ripped the movie originally was the one who violated the "Thou Shalt Not Break DRM" section of the DMCA (and of course, this ignores the possibility of it being someone in a jurisdiction where the DMCA or a similar law doesn't apply). Thus, our downloader did not break the DRM. They downloaded a file that had no DRM. The downloader used many tools to get their file - a mouse, keyboard, monitor, computer, internet connection, electricity, Piratebay. In this scenario, TPB is just one of many tools used, and yet it is singularly being targeted.
Yes, TPB does do the equivalent of waving a red flag in front of a bull with regards to all the legal threats against it. But here's the thing. The copyright maximilists don't have to be the bull. They can choose not to. You can choose to stop frothing at the mouth and charging. TPB wouldn't bother waving their red flag if there was no response to it.

Re: Re: Linking

In US, the relative nature of TPB's illegality is straightforwardly addressed in the Grokster decision by the Supreme Court, which was unanimous. Intent, knowledge, commercial profits of distributors and significance of infringing vs non-infringing uses by users all critical.

Re: Re: Linking

Even if TPB on the facts is engaged in unprotected activity merely providing another with a link or an infohash without more is no different from referencing an address from the phone book.

If speech facilitating crime is not free speech, there should at least be a nexus between the speech and facilitation of a specific crime i.e committing a specific instance of copyright infringement.

What bothers me about third party liability is not necessarily punishing the founders of TPB. On the facts, they might well be guilty, but banning speech telling the public how to access TPB lacks a nexus to a crime.

Accessing TPB is not itself illegal for the public, only using the knowledge to commit a specific copyright infringement is illegal;

It should therefore follow that merely providing information on how to circumvent an ISP block can't by itself be facilitation of crime unless the information specifically encourages the recipient to go and download something in violation of copyright law.

An IP address, infohash or link to a proxy maintained by another is therefore not facilitating crime.

Re: Re: Re: Linking

Is it 'speech' or a commercial service being provided? There's one question.

The issue is not a person accessing the site, failing to infringe and then being denied their rights when the site is later blocked. The issue lies with the people operating that site, knowingly, for purposes of significant infringement. In such a case, that site or business has no right to exist, under free speech or any other doctrine. Who is providing the circumvention tool and for what proven purposes?

There are certainly gray areas and contradictions, but you yourself admitted that TPB was probably guilty. So then let's just find common ground on that and move on from there. Was reading Grokster decision recently and was pretty taken aback by just how much guidance it provides. Pretty nuanced on acknowledging the trade offs between copyright protection vs harms to tech innovation. And a unanimous decision. Thanks for discussion.

I understand that the nature of infringement and digital copyright can be incredibly confusing and byzantine and in some cases ineffective too. It's not perfect and none of us are perfect. And if DRM is effective, I'm unaware of any proof of that.

What I am appalled by, aside from all the confusing or weird hypotheticals we could all come up with if given the chance, is when people knowingly ignore the rights of artists/creators who have put a lot of work and sacrifice into their art, ignore the rights of companies like record labels who have put their asses on the line as well/invested in that work and promoted it, and then try to reverse engineer one excuse or another for why it is right or excusable. I don't expect people to stop pirating while it is easy, but that doesn't mean we can't be honest about what is occurring. Doesn't mean we start assuming we are entitled to everything just because the internet makes it easy. It's illegal exploitation. And the fact that TPB has made such a big deal about their supposed moral superiority, when what they are in fact doing is making money (and promoting themselves) while exploiting the rights and considerable labor of others --- I mean. I find the culture - business culture mind you - that they represent to be truly disgusting, truly a sign of cultural decline. I do like the Promo Bay idea, just wish it could be separated from Pirate Bay. In the same way i am for kickstarter and bandcamp...as long as the artist has the choice. I think that's best for both fans and creators in the short and long term.

The harm of infringement is determined by the rights holder. If they believe their rights are being infringed, then they have a legal right to take action under whatever law exists. That's it basically. You don't like that? Okay. Come up with a proposal and argue for it. The "maximalists" as you call them can do what they want. So boycott them. But don't then download their shit and pretend it's justified.